Citation Nr: 1338426 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-08 443A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left ankle disability. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left thigh disability. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 5. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Blinded Veterans Association WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from October 1980 to December 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2013, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims folder. The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A February 2002 RO rating decision denied the appellant's claims of entitlement to service connection for a left ankle disability and a left thigh disability. The appellant was notified but did not perfect an appeal of the decision. 2. A July 2005 RO rating decision denied the appellant's claim of entitlement to service connection for PTSD and application to reopen a claim of entitlement to service connection for a left knee disability. The appellant was notified but did not perfect an appeal of the decision. 3. Evidence received since February 2002 RO decision is new; however, it is not material because it does not raise a reasonable possibility of substantiating the claims of entitlement to service connection for a left ankle disability or a left thigh disability. 4. Evidence received since July 2005 RO decision is new; however, it is not material because it does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disability. 5. Evidence associated with the claims file after the final denial in July 2005 in regard to the Veteran's claim of entitlement to service connection for PTSD is neither cumulative nor redundant of the evidence of record at that time and, when considered with the previous evidence of record, raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The February 2002 and July 2005 RO rating decisions are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. Evidence received since the February 2002 RO decision which denied entitlement to service connection for a left ankle disability and a left thigh disability, is not new and material; therefore, the claims are not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156, 20.302, 20.1103 (2013). 3. Evidence received since the July 2005 RO decision which denied entitlement to service connection for a left knee disability, is not new and material; therefore, the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156, 20.302, 20.1103 (2013). 4. Evidence received since the July 2005 RO rating decision in connection with the Veteran's request to reopen a claim of service connection for PTSD is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). November 2006 and July 2008 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specific to applications to reopen claims, the letters informed the Veteran of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran's service treatment records and all available VA treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran was afforded a VA joints examination in August 2008. However, the Board notes that the duty to examine applies only after new and material evidence sufficient to reopen has been received. 38 C.F.R. § 3.159(c)(4)(iii). In addition, the Board does not have a duty to provide an adequate medical examination when the Veteran has not submitted new and material evidence to reopen the claim. Woehleart v. Nicholson, 21 Vet. App. 464, 463 (2007). The Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. Applications to Reopen In a February 2002 RO rating decision, the Veteran's claim for entitlement to service connection for left thigh contusion and atrophy, left ankle disability, left knee disability, and depression. The evidence before the VA at the time of the February 2002 RO rating decision consisted of the Veteran's service treatment records, VA treatment records, and a report of a VA examinations dated in November 2001. The report of a VA examination in November 2001 indicates that the Veteran reported in regard to his left knee that he had recurrent, pain, swelling and a tendency for the lower leg to externally rotate from the upper leg since his injury in service. The Veteran reported that he injured his left ankle in a 1993 fall and that it intermittently caused pain and swelling and that he ordinarily limped. The Veteran was noted to have scrapped his thigh in 1982 and that he noticed considerable atrophy of the leg especially since his surgery. The Veteran's claim for a left thigh disability was denied on the basis that although there was record of treatment in service, specifically a left thigh bruise following a motorcycle accident, no permanent residual or chronic disability subject to service connection was shown by the service treatment records or demonstrated by the evidence following service. It was found that the Veteran current left thigh atrophy was unrelated to the Veteran's active service. The Veteran's claim for a left ankle disability was denied on the basis that although the evidence shows that the Veteran was treated for a left ankle issue in service, other evidence received in connection with the claim, including evidence of a compound fracture of the ankle due to a fall in 1993, shows that the Veteran currently suffers from a left ankle condition unrelated to the disability which occurred in service. The Veteran's claim for a left knee disability was denied on the basis that although the Veteran's left knee was treated in service, other evidence received in connection with the claim shows that the Veteran's current left knee condition is unrelated to the disability which occurred in service. Specifically the rating decision notes that it was found that the Veteran's left knee disability was linked to a sports injury in February 2001. The Veteran's claim for depression was denied on the basis that there was no evidence the claimed condition exists. The Veteran filed notices of disagreement with this decision in September 2002 and November 2002. Additional VA treatment records, including records regarding the Veteran's left knee, dated through December 2002, were associated with the claims file. The Veteran's claims were readjudicated, including consideration of this new evidence, in December 2002 and April 2003 Statements of the Case. The Veteran perfected an appeal of the issue of entitlement to service connection for a left knee disability; however, the Veteran in a statement dated in January 2005 withdrew this appeal. The Veteran did not perfect his appeal of the issues other than entitlement to service connection for a left knee disability. Service personnel records were associated with the claims file in May 2005; however, these records are not relevant to the Veteran's claims for entitlement to service connection for left knee disability, left ankle disability, and left thigh disability. See 38 C.F.R. § 3.156(c). In a July 2005 RO rating decision, the Veteran's claims of entitlement to service connection for PTSD and application to reopen a claim of entitlement to service connection for a left knee disability were denied. The evidence before the Board at the time of the July 2005 RO rating decision included statements of the Veteran, treatment records from Foothills Orthopedic Associates, and additional VA treatment records. The Veteran's claim for PTSD was denied on the basis that there was no evidence of exposure to combat, no evidence of any psychiatric disorder in service, and the record did not show a relationship between the Veteran's PTSD and military service. The Veteran's application to reopen the claim for a left knee disability was denied on the basis that it was previously denied in February 2002 on the basis that there was no relationship between the disability which occurred in service and the current condition. The RO noted that VA treatment records did not show treatment for a left knee disability and, therefore, there was no evidentiary basis upon which to reconsider the claim. The Veteran did not perfect a timely appeal to this RO rating decision. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.302, 20.1103. Although additional evidence was received within one year of the February 2002 RO rating decision, this evidence was considered in conjunction with those claims in subsequent Statements of the Case dated in December 2002 and April 2003. In addition, the Veteran did not perfect the appeal of the issues of entitlement to service connection for a left ankle disability, a left thigh disability, or depression from the February 2002 RO rating decision and although he perfected the appeal of the issue of entitlement to a left knee disability, he later withdrew this appeal. The Veteran did not perfect appeals from the July 2005 RO rating decision. Thus, the RO rating decisions became final because the Veteran did not perfect an appeal and, new and material evidence pertaining to the claim was not received prior to the expiration of the appellate period. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The claims of entitlement to service connection may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed this application to reopen his claim in July 2006. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In a statement dated in February 2007 the Veteran reported "I have no new and material evidence. All the evidence is in my military medical records, whereby I was involved in a motorcycle accident while on active duty at Ft. Knox, KY. I was treated at the Post Hospital." The Veteran was afforded a VA joints examination in August 2008. The examiner made the impression that the Veteran had degenerative joint disease of the left ankle, healed fibula fracture from a non-military related injury in 1998. The examiner further noted that the Veteran had degenerative joint disease of the left knee status post arthroscopic surgery with well healed, non disfiguring scars. There was moderate vastus lateralis muscle atrophy and weakness on examination. In July 2009 the Veteran indicated that he initially hurt his knee three months prior. The provider noted that the initial injury was in December 2008. Subsequent to the RO rating decisions, VA treatment records reveal treatment for anxiety and depression. The Veteran has been noted to be diagnosed with depressive disorder not otherwise specified. Multiple VA treatment notes reveal diagnoses of PTSD. See VA Treatment dated November 2012. In addition, the Veteran has undergone military sexual trauma consultations. In a November 2012 psychiatric treatment note the Veteran discussed his stressor of having been sexually assaulted while in service. The Veteran was reported to be diagnosed with anxiety and depression. At a hearing before the undersigned in February 2013 the Veteran reported that he had ankle, knee, and thigh problems since his accident in service. In addition, the Veteran reported that he was assaulted in service. The Board has carefully reviewed the newly submitted evidence and Board finds that in regard to the claim of entitlement to service connection for PTSD the evidence is both new and material. The evidence is new as it was not of record at the time of the prior denial. The evidence is also material because it shows that the Veteran has been diagnosed with PTSD and reveals that the Veteran has contended that his PTSD is related to military sexual trauma. In conjunction with the other evidence of record, assuming the credibility of this evidence, the evidence raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. Shade, 24 Vet. App. at 110. In light of the above, the Board finds that the evidence received since the prior final denial regarding the claim of entitlement to service connection for PTSD is both new and material and, therefore, the request to reopen is granted. 38 C.F.R. § 3.156(a). In regard to the Veteran's applications to reopen claims of entitlement to service connection for a left knee disability, a left ankle disability, and a left thigh disability, the Board finds that new and material evidence has not been received. Since the prior final denial the Veteran has received treatment; however, there is no new evidence indicating that the Veteran's conditions may be related to his active service. The Veteran reported in February 2007 that there was no new and material evidence and that all of the evidence was contained in his military medical records. In addition, the Veteran was afforded a VA medical examination in August 2008 that did not identify any association between the Veteran's conditions and the Veteran's active service. It is acknowledged that the Veteran reported at his hearing before the undersigned that he had problems with his left knee, left ankle, and left thigh since a motorcycle accident in service; however, these contentions were, in essence, related prior to the prior final denials. As there is no new and material evidence in regard to the applications to reopen the claims of entitlement to service connection for a left knee disability, a left ankle disability, and a left thigh disability, the requests to reopen are denied. 38 C.F.R. § 3.156(a). ORDER New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for a left knee disability is denied. New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for a left ankle disability is denied. New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for a left thigh disability is denied. The claim for entitlement to service connection for posttraumatic stress disorder, is reopened, and the appeal is allowed to this extent. REMAND "When the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits." Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010). Here, in the rating decision, Statement of the Case, and the Supplemental Statement of the Case, the RO declined to reopen the Veteran's claim of entitlement to service connection for PTSD finding that no new and material evidence was received. The Board notes that RO did not discuss the Veteran's contentions of military sexual trauma. Therefore, the Board is remanding the issue of entitlement to service connection for PTSD for the RO to consider the issue on the merits. There are special evidentiary procedures for PTSD claims based on personal assault. Patton v. West, 12 Vet. App. 272 (1999); See also VA ADJUDICATION MANUAL M21-1MR, Part IV, subpart ii.1.D.17. Because personal trauma is an extremely personal and sensitive issue, many incidents of personal trauma are not officially reported, and the victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. It is often necessary to seek alternative evidence. Id. These "other types of evidence" may corroborate his account of the stressor incident. Examples of such evidence (as applicable to the particulars of the alleged assault) include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is also one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the occurrence of the stressor include, but are not limited to: a request for a transfer to another duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether such evidence indicates the occurrence of a personal assault. Although the Statement of the Case and the Supplemental Statement of the Case provide the Veteran with a copy of 38 C.F.R. § 3.304(f), review of the claims folder does not reveal that the Veteran has been provided notice specific to his contention that he was the victim of a rape during active service. This must be accomplished on remand. Review of the claims file reveals a notation that the Veteran had a Social Security Administration (SSA) claim pending. However, the records regarding the application for these benefits have not been associated with the claims folder and the record contains no indication that any attempt was made to obtain the Veteran's complete SSA record. Because SSA records are potentially relevant to the Board's determination, VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2); see also Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir., 2009); Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010). Thus, this appeal must be remanded to obtain the Veteran's complete SSA record. Since the claims file is being returned it should be updated to include VA treatment records compiled since January 2013. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). VA has neither afforded the Veteran an examination nor solicited a medical opinion as to his PTSD. Here as the Veteran has been diagnosed with PTSD and has reported that was assaulted in service, the Veteran should be afforded a VA medical examination. 38 C.F.R. § 3.159(c)(4); See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a notice letter compliant with 38 C.F.R. § 3.304(f) as required for PTSD claims based on in-service personal assault. In particular, the notice must advise the Veteran that evidence from sources other than his service records or evidence of behavior changes may constitute credible supporting evidence of the in-service stressor. 2. Attempt to obtain all VA treatment records dated subsequent to January 2013. 3. Obtain complete copies of any SSA decisions on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the Veteran must be informed in writing. 4. Thereafter, schedule the Veteran for a VA mental disorders examination, to be performed by a licensed psychiatrist or psychologist other than Dr. R.F., to determine the existence and etiology of any PTSD found to be present. The claims folder, including a copy of this REMAND, must be provided to the examiner for review of pertinent documents therein, and the examination report should reflect such review was accomplished. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the examination report. The examiner is requested to provide an opinion regarding the following: a. whether it is at least as likely as not (probability of at least 50 percent), that the Veteran's claimed in-service personal assault(s) occurred. The examiner is directed to consider secondary records, as well as the Veteran's medical records, personnel records, and any lay statements submitted by the Veteran. b. whether it is at least as likely as not (probability of at least 50 percent) as not that any currently manifested PTSD is etiologically related to the Veteran's in-service stressor(s). In this regard, the examiner is instructed to consider only the stressor(s) identified as having been verified by the record. c. If a psychiatric disorder other than PTSD is diagnosed, whether it is at least as likely as not (probability of at least 50 percent) that any such disorder is etiologically related to the Veteran's active service. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs